Vincent v. City of Kalamazoo

Hooker, J. On July 35, 1894, James Carrol conveyed to the complainant, by warranty deed, the following parcel of land in the city of Kalamazoo, viz.: “That part of lot number 333 commencing 36J feet from the south curbstone, the same being 31 feet from the center, of Water street; * * * running thence east 66 feet; thence north 36& feet; thence west 66 feet; thence south to place of beginning,—and containing the land therein, except that set apart for sidewalk purposes.” [231] Previous to this time, and from 1864 to 1893, when the building was destroyed by fire, the curbstone was distant 10 feet from the side wall of a wooden building situate upon said lot, and the sidewalk covered the space between the wall of the building and the curb. The complainant proposed to erect a brick building upon the site of the former building, the north wall to be placed at a distance of 10 feet from the curb. The city claimed that such a location of the wall would encroach upon the street 2 feet, and an inspection of the recorded plat shows that this strip of land 2 feet wide, adjoining the sidewalk upon the south, was within the limit of the street as platted. This bill is filed to restrain the defendant city from preventing complainant from covering by his proposed building the two-foot strip of ground. The case turns upon the question of adverse possession. It seems to be admitted that the buildings have covered this ground for about 30 years, during which period no claim of encroachment was made by the city; but it is contended that none of the owners occupied the premises more than 8 years, and that each one excepted this strip when the property was conveyed by him, and that consequently his successor acquired no advantage by reason of the adverse occupancy. This contention is, of necessity, based on the claim that the part of the street set aside for sidewalk purposes included all of the land between the curb and the street line as platted, i. e., 12 feet. There is no evidence that any portion of the street was “set apart for sidewalk purposes,” except the fact that a walk 10 feet wide existed. Nothing in the plat shows an intention to designate any part for sidewalks, nor is there evidence of any corporate action setting apart this 2 feet with other land for sidewalks. The only reasonable construction, therefore, is that the exception referred to the land actually in use for that purpose, viz., 10 feet. It is unnecessary to discuss the legal question, as it has been frequently held that the public could lose an easement [232] by nonuser, accompanied by occupancy by an adjoining proprietor. The judgment is affirmed. Long, C. J., Grant and Montgomery, JJ., concurred. Moore, J., did not sit.